CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into effective November
10, 1997, between COLMENA CORP., a Delaware corporation, with its principal
offices located at 00000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000 (hereinafter
referred to as the ("Company"), and XXXX XXXXXXX, an individual resident in the
State of Illinois, with his principal offices located at 0000 X. Xxxxxxx Xxxx,
Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx, 00000 (hereinafter "Consultant").
1. Consulting Services
The Company hereby engages Consultant to perform the financial consulting
services listed below on the terms and conditions set forth in this Agreement:
(A) Review the business operations of potential transaction
candidates;
(B) Meet with the appropriate shareholder groups in an effort to
resolve any valuation differences;
(C) Initiate and negotiate on behalf of the Company to explore
potential transactions;
(D) Analyze and evaluate the projected financial performance of the
Company;
(E) Assist in the formulation of a strategy for discussions with and
the presentation of a transaction proposal to any interested
parties;
(F) As mutually agreed, advise the Company regarding alternative
financing structures (including bridge loans) with which to
effect a transaction;
(G) Assist in negotiations of letters of intent and definitive
purchase or financing agreements with any interested parties and
their advisors;
(H) Provide, as deemed appropriate by Consultant, additional advisor
services related to a transaction.
Company acknowledges that Consultant is not a registered broker-dealer and
that Consultant cannot, and shall not be required hereunder to, engage in the
offer or sale of securities on behalf of the Company. While Consultant has
relationships and contacts with various investors, broker-dealers, and
investment funds, Consultant's participation in the actual offer or sale of the
Company securities shall be limited to that of an advisor to the Company and a
"finder" of investors, broker-dealers and funds. The Company acknowledges and
agrees that the solicitation and consummation of any purchases of the Company's
securities shall be handled by the Company or one or more NASD member firms
engaged by the Company for such purposes.
2. Term of Agreement
The term of this Agreement shall commence on the date hereof and shall
continue for a period of thirty-six (36) months.
3. Consideration to Consultants
3.1 As compensation for the services rendered hereunder, the Company shall
issue and deliver to Consultant, One Hundred Thousand (100,000) shares
of the Company's common stock, $.01 par value.
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3.2 As additional consideration for the services of Consultant, the
Company agrees to indemnify and hold harmless Consultant and each of
its officers, directors, agents, employees and controlling persons
(collectively "Indemnified Persons") to the fullest extent permitted
by law, from and against any and all losses, claims, damages, expenses
(including reasonable fees, disbursements and other charges of
counsel), actions, proceedings or investigations (whether formal or
informal), or threats thereof (all of the foregoing being hereinafter
referred to as "Liabilities"), based upon, relating to or arising out
of Consultant's engagement hereunder, including, but not limited to
Liabilities arising in connection with the dissemination of
information about the Company or the Company's business, whether in
any presentation, in person, through the mails or otherwise; provided
however, that the Company shall not be liable under this paragraph to
the extent that it is finally judicially determined that such
Liabilities resulted primarily from the willful misconduct or gross
negligence of the Indemnified Person seeking indemnification. In
connection with the Company's obligation to indemnify for expenses as
set forth above, the Company further agrees to reimburse each
indemnified Person for all expenses (including reasonable fees,
disbursements and other charges of counsel) as they are incurred by
such indemnified Person; provided, however, that if an Indemnified
Person is reimbursed hereunder for any expenses, the amount so paid
shall be refunded if and to the extent it is finally judicially
determined that the Liabilities in question resulted primarily from
the willful misconduct or gross negligence of such Indemnified Person.
4. Miscellaneous
4.1 Further Actions. At any time and from time to time, each party agrees,
at its or his expenses, to take such actions and to execute and
deliver such documents as may be reasonably necessary to effectuate
the purposes of this Agreement.
4.2 Entire Agreement; Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof
and supersedes all existing agreements among them concerning such
subject matter, and may be modified only by a written instrument duly
executed by the party to be bound.
4.3 Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified
mail, return receipt requested (or by the most nearly comparable
method if mailed from or to a location outside of the United States),
or delivered against receipt to the party to whom it is to be given at
the address of such party set forth in the preamble to this Agreement
(or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section). Any notice given
to any corporate party shall be addressed to the attention of the
Corporation Secretary. Any notice of other communication given by
certified mail (or by such comparable method) shall be deemed given at
the time of certification thereof (or comparable act), except for a
notice changing a party's address which will be deemed given at the
time of receipt thereof.
4.4 Waiver. Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed tp be a waiver of any
other breach of that provision or of any breach of any other provision
of this Agreement. The failure of a party to insist upon strict
adherence to any term o this Agreement on one or more occasions will
not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other
term of this Agreement. Any waiver must be in writing and, in the case
of a corporate party, be authorized by a resolution of the board of
directors or by an officer of the waiving party.
4.5 Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the Company and Consultant and their
respective successors and assigns; provided, however, that any
assignment by any party of its rights under this Agreement without the
written consent of the other party shall be void.
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4.6 Severability. If any provision of this Agreement is invalid, illegal,
or unenforceable, the balance of this Agreement shall remain in
effect, and if any provision in inapplicable to any person or
circumstance, it shall nevertheless remain applicable to any other
pers and circumstances.
4.7 Headings. The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or
interpretation of this Agreement.
4.8 Counterparts; Governing Law. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. It
shall be governed by and construed in accordance with the laws of the
State of Delaware, without giving effect to conflict of laws.
4.9 Attorney's Fees. In the event of a dispute with respect to this
Agreement, the prevailing party shall be entitled to its reasonable
attorney's fees and other costs and expenses incurred in litigating or
otherwise resolving or settling such dispute.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
COLMENA CORP.
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxx, Xx., President
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
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